JUDGMENT 1. The first question debated in this second appeal by defendants, the Commissioners of Darjeeling Municipality, from an appellate judgment and decree of affirmance is whether or not the levy of education cess by the appellants to meet the expenditure on free compulsory primary education comes on the edge of the Bengal Primary Education Act, 4 of 1919, shortened hereafter into the Act. The judge of the first instance and, on appeal, the district judge hold that it does. Mr. Bakshi, the learned advocate for the appellants, contends that it does not. 2. A running analysis of the Act may secure a better understanding of the point at issue. It is an Act to provide for the extension of primary education in municipalities and in certain other areas in Bengal. A short one, it consists of 22 sections-sections 1-17, 17a and 18-21. These sections are spread over six partsparts I to IV, IVA and v. Part I consists of two sections, sections 1 and 2, providing for citation of the Act and the area over which it extends and containing seven definitions of which the definition of primary education bears: 2. . (5) "primary education" means such elementary education as may be prescribed from time to time for primary schools by the Education department of the State Governments ;" part II captioned "voluntary Primary Education" consists of two sections too, sections 3 and 4. Section 3 provides for a detailed statement to be submitted to the State Government by the municipality containing particulars, one of which is the number of children, not being less than six or more than eleven years of age, living within the municipality, and the other of which is the receipts already available, and the income including the probable receipts from any education cess that may in future be levied under section 17, which it may be estimated will be available to meet such expenditure. Section 4 prescribes that the State Government shall take the statement just referred to into consideration, as also the conditions and resources of the municipality, shall determine the financial assistance it may render to give voluntary primary education a start and thereafter may direct the municipality to go ahead providing all that is needed to implement the scheme for children of the age groups noticed above. Part III captioned "compulsory primary Education" the longest part of this short Act consists of twelve sections, sections 5-16. The gist of what sections 5 and 6 say to the municipality comes to this: Provide for voluntary primary education first. Decide then if you will make primary education compulsory for boys not less than six and not more than ten years of age. If you decide that, you will seek permission of the State Government to introduce it. Permission obtained, draft a notification stating that the primary education shall be compulsory for the boys of the age groups 610, get it passed at special general meeting convened for the purpose taking care to see that at least two-thirds of the total number of the commissioners are present in the aforesaid meeting and publish it in the Calcutta Gazette and local newspapers. Post it too at the municipal office and at such other places as you may deem necessary. But specify ever where the date when this scheme receives effect. No such notification, no introduction at compulsory primary education under this part. Sections 713 and 15-18 deal with matters which do not concern this litigation. The matters are constitution of the school committee, duty of guardian to send boys to school, order of the magistrate to compel attendance of boys whose guardians are recalcitrant, penalty for failure to obey the magistrate's order, prohibition of employment of boys when such employment does interfere with their attendance at a school, employers' liability, delegation of some of the functions of the school committee, power of the said committee to make rules and exemption of a class of persons or a particular community from compulsory education. Section 14 for sees that there may be guardians who are too poor to pay the schooling fees. But law has made it compulsory for them to send their wards to the school. So it provides for a remission, total or partial, of the fees in appropriate cases. Thus ends Part iii, the heading of which is "compulsory Primary Education". Part IV captioned "education Cess" consists of a solitary section, section 17, the pith of which, in so far as it is material here, is : 3. The existing resources of the municipality are not sufficient to cover the costs of primary education. Thus ends Part iii, the heading of which is "compulsory Primary Education". Part IV captioned "education Cess" consists of a solitary section, section 17, the pith of which, in so far as it is material here, is : 3. The existing resources of the municipality are not sufficient to cover the costs of primary education. The municipality may then impose a tax to be called "education Cess", but on two conditions : one, the previous sanction of the state government must be obtained; two: two-thirds of the commissioners must pass a resolution to that end at a special general meeting convened for the purpose. With these formalities observed, the "education Cess" will come into being. It will be levied at a rate amounting to the sum required, after deducting the government grant, the school receipts and the receipts from endowment and contributions, to meet the expenditure on primary education, together with ten per cent above such sum to meet the collection charges and the probable losses due to non-realization from defaulters. Part IVA captioned "compulsory primary Education of Girls" consists of one section as well, section 17a, which does not bulk large here. Nor does part V captioned "supplemental" consisting of four sections, sections 1821, providing inter alia for power of the state Government to make rules, the schools being open to inspection free of any charge by the inspecting officers of the Education Department, certain persons being deemed as public servants within the meaning of section 21 of the Penal Code and withdrawal of the notification under sub-section (2)of section 6 by the State Government on default by the municipality. 4. In this analysis, do I find anything anywhere about free compulsory primary education to all ? I do not. The learned judges below think that there is no provision either that free compulsory primary education shall be on a paying basis. With respect, I do not agree. I do not, because what is then section 14 for ? Looking fairly at the language used, what it says appears to be clear enough. Payment of fees for the schooling the boys receive must be there. Only those who cannot pay are to be granted exemption, total or partial. So compulsory primary education on a paying basis is clearly said in section 14. Again, sub-section (3) to section 17 points to the same conclusion. Payment of fees for the schooling the boys receive must be there. Only those who cannot pay are to be granted exemption, total or partial. So compulsory primary education on a paying basis is clearly said in section 14. Again, sub-section (3) to section 17 points to the same conclusion. If x be the sum required to meet the expenditure on primary education, voluntary or compulsory, the education cess shall be X (minus government grant plus school receipts plus receipts from endowments and contributions) plus ten pen cent above such sum. I accept Mr. Bakshi's contention that receipts from endowments and contributions may be nil. So what ? School receipts may be nil too ? Then section 14 has to be written off. And it cannot be written off by any court of law. Or it has to be said that the school committee will grant free-studentships to all the boys of all the schools within the limits of the municipality which is a reduction ad absurdum. They why ten per cent above such sum? As subsection (3) of section 17 says, this percentage is to meet the collection charges and probable losses due to non-realization from defaulters. Who, I ask, the defaulters will be unless they be the pupils receiving education in these schools ? It is a taxing statute I am interpreting. So the ratepayers of the appellant municipality are not to be taxed without clear words for that purpose in the statute itself. The position then really comes to this. You cannot introduce free compulsory primary education within the limits of the Act. Once you cannot do so, you cannot raise the incidence of taxation in the shape of education cess by making it free. It goes without saying that if the school receipts are not taken into reckoning or are eliminated outright, the incidence of taxation will necessarily be higher. Agreeing with the two learned judges below, the conclusion I have, therefore, come to is that the appellant municipality will overstep the limits of the Act if it introduce free compulsory primary education and impose a tax called the '"education Cess" in the wake thereof. The second point on which this appeal been opened by Mr. Bakshi is that the education cess for 1952-53 effective from July 1, 1952, is not a levy for free compulsory primary education. The second point on which this appeal been opened by Mr. Bakshi is that the education cess for 1952-53 effective from July 1, 1952, is not a levy for free compulsory primary education. It is a levy for free primary education which is not compulsory. In other words, primary education being not compulsory, it has to be voluntary in view of the dichotomy the Act itself makes. Let that be so. And from papers of undoubted authenticity exhibited at the trial, the position very much looks like that. 5. Still the question remains : is it open to the appellant municipality to levy an education cess for free voluntary primary education ? Section 3 which has been noticed already speaks of a statement to be submitted by the municipality to the State Government setting out various particulars. One such particular is the particular about the; receipts already available [section 3 (f) ]. Now, what are these receipts ? that will be found from sub-section (3) of section 17. The receipts are the government grant, the school receipts and receipts from endowment and contributions. The government grant is also referred to in clause (g) of section 3. It, therefore, defeats me how the municipality can eliminate the school receipts. It forms part and a very important part at that of the particulars to be furnished to the State Government. It is an important item too which the State Government will duly take into its consideration. And really it looks odd, as pointed out by Mr. Burman, the learned advocate for the respondents, that if the appellant municipality is debarred under the law from introducing free compulsory primary education, it will have the power to introduce free voluntary primary education, and the considerations which I have referred to when I have dealt with the first point urged on me by Mr. Bakshi apply here too mutatis mutandis. The 'school receipts' is an item which has to be taken into consideration in levying education cess. The mandate of subsection (3) of section 17 is very clear to that end. You eliminate the school receipts and you disobey the mandate of the law. Bakshi apply here too mutatis mutandis. The 'school receipts' is an item which has to be taken into consideration in levying education cess. The mandate of subsection (3) of section 17 is very clear to that end. You eliminate the school receipts and you disobey the mandate of the law. So, here also the conclusion I come to is that it is not open to the appellant municipality either to impose or to levy a tax to be called "this education Cess" eliminating the school receipts, which means fees received from the pupils receiving their education. It forms a statutory ingredient, so to say, to be taken into reckoning by the municipality in levying their rate for education cess. So, the second point Mr. Bakshi urges upon me fails too. 6. About the third point, I see substance in what Mr. Bakshi contends for. What has happened in this case is that the appellant Municipality has passed a resolution in accordance with subsection (2) of section 17 and has thereafter approached the State Government for their sanction. Sanction received, they have proceeded to levy the education cess already agreed to and decided upon in the previous resolution. I for one do not see anything wrong in this. Mr. Burman dees. His contention is that the previous sanction of the State government must be obtained. That alone will enable the municipality to impose a tax called "the Education cess". Previous sanction obtained, a resolution has to be passed as contemplated by sub-section (2). And, of course, two-thirds of the commissioners must be in favour of such a resolution. So things have taken place in the municipality not in the order in which it is ordained in sub-section (1) and thereafter in sub-section (2) of section 17. In my judgment, that creates no difficulty. How will a municipality approach the State Government with a view to obtaining their previous sanction ? An ordinary letter will not do. The State Government has to be approached only in the basis of a resolution. And that is the resolution I see here. That resolution is complete by itself, stating what their decision is and what the levy will be. The State Government accords its sanction to that. And then the municipality starts levying the tax so imposed. The State Government has to be approached only in the basis of a resolution. And that is the resolution I see here. That resolution is complete by itself, stating what their decision is and what the levy will be. The State Government accords its sanction to that. And then the municipality starts levying the tax so imposed. Only because the resolution comes first and the sanction of the Government comes later, the position at law does not become altered. The hard fact remains that the levy effective from July 1, 1952, is after the resolution dated March 10, 1952, and after the sanction dated May 20, 1952. Mr. Burman contends that it was incumbent upon the appellant municipality then to pass another resolution after the sanction was obtained. To my thinking, that would be a jejune formality. Nor do i see as the Mr. Burman does, much of a difference on the point I am on now between an imposition and a levy. The previous sanction of the State Government obtained, the imposition which the municipality has decided is taking a legal shape. And only thereafter the cess so imposed is levied with effect from July 1, 1952. I do not read section 17 only to mean : previous sanction first; resolution then and levy thereafter. I read it also to mean: resolution first; previous sanction next and levy last. That is substantial compliance with the requirements of section 17. The fourth point which Mr. Bakshi raises does not call for any decision in this appeal, the scope of the litigation or the decision being what it is. Accordingly, whether the notification under sub-section (2) of section 6 for introducing compulsory primary education is good or bad remains open. In the result, the appeal fails and is dismissed. Upon all I see here, I direct that each party do bear its costs throughout.